Citation Nr: 1325145 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-29 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of service connection for tinea versicolor. 2. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of service connection for bilateral hearing loss. 3. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of service connection for tinnitus. 4. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of a total disability evaluation based on individual unemployability (TDIU). 5. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of eligibility to Dependent's Educational Assistance under 38 U.S.C. Chapter 35. 6. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of service connection for major depressive disorder. 7. Entitlement to an earlier effective date earlier than April 15, 1997 for the grant of an increased rating for recurrent lumbar radiculopathy status post hemilaminectomy and disckectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty January 15, 1973 to March 14, 1975, August 1, 1979 to October 31, 1985, July 7, 1991 to January 3, 1992, February 3, 1992 to April 14, 1997 and September 30, 1997 to April 30, 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The earliest that the Veteran submitted a claim of entitlement to service connection for a skin disorder was in March 1997; he was on active duty from February 3, 1992 to April 14, 1997; service connection for tinea versicolor was granted effective as of April 15, 1997, the first day after his discharge from this period of active duty service. 2. The earliest that the Veteran submitted a claim of entitlement to service connection for hearing loss was in March 1997; he was on active duty from February 3, 1992 to April 14, 1997; service connection for bilateral hearing loss was granted effective as of April 15, 1997, the first day after his discharge from this period of active duty service. 3. The earliest that the Veteran submitted a claim of entitlement to service connection for tinnitus was in March 1997; he was on active duty from February 3, 1992 to April 14, 1997; service connection for tinnitus was granted effective as of April 15, 1997, the first day after his discharge from this period of active duty service. 4. In a December 2006 decision, the Board determined that the effective date for the grant of TDIU should be April 15, 1997; the Veteran has not appealed nor contested this decision. 5. The earliest that the Veteran was found to have a total service-connected disability permanent in nature is April 15, 1997 which is the effective date for the grant of eligibility to Dependent's Educational Assistance under 38 U.S.C. Chapter 35. 6. A January 1997 RO decision denying service connection for a mental disorder is final; the Veteran submitted a request to reopen the claim in March 1997; he was on active duty from February 3, 1992 to April 14, 1997; service connection for major depressive disorder was granted effective as of April 15, 1997, the first day after his discharge from this period of active duty service. 7. A final December 2002 RO decision restored a 60 percent evaluation for the service-connected back disability, effective from April 15, 1997; the Veteran submitted a claim for an earlier effective date for his back disorder in January 2007. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of service connection for tinea versicolor, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 2. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of service connection for bilateral hearing loss, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 3. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of service connection for tinnitus, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 4. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of TDIU, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of eligibility to Dependent's Educational Assistance under 38 U.S.C. Chapter 35, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 6. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of service connection for major depressive disorder, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 7. The criteria for entitlement to an earlier effective date prior to April 15, 1997 for the grant of an increased rating for recurrent lumbar radiculopathy status post hemilaminectomy and disckectomy, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran was provided with proper notification regarding his earlier effective date claims via correspondence dated in June 2007, which notice was provided prior to the adjudication of the claims on appeal. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, VA examination reports, and lay statements. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claims. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal criteria Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). The proper effective date for an award based on receipt of new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). When evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. The "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Entitlement to an earlier effective date for the grant of service connection for tinea versicolor, for bilateral hearing loss and for tinnitus The evidence of record demonstrates that the Veteran submitted claims of entitlement to service connection, in pertinent part, for hearing loss and a skin disorder in March 1997. The RO interpreted this submission as a claim of entitlement to service connection for tinnitus also. In January 2007, the RO granted service connection for hearing loss, tinnitus and for tinea versicolor. The effective dates for the grants of service connection was April 15, 1997. The RO assigned a 10 percent disability evaluation for the hearing loss and noncompensable evaluations for the tinnitus and tinea versicolor, effective from May 1, 1998. The Veteran has perfected an appeal with the effective dates for the grant of service connection. At the time the Veteran submitted the original claims for service connection for hearing loss, tinnitus and for tinea versicolor skin lesions in March 1997, he was still on active duty service. The effective dates assigned by the RO for the grant of service connection for the disorders is the first day after the Veteran's discharge from active duty for this period of active duty service which was from February 3, 1992 to April 14, 1997. The regulations governing effective date claims specifically direct that the earliest that an effective date can be is the day following separation from active service if a claim was received within one year of the date of separation from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Veteran testified before the undersigned in May 2013 that he submitted claims for service connection, in part, for hearing loss and skin problems in 1991. The Board's review of the claims file demonstrates that the earliest that the Veteran filed a claim for service connection for any disorder was in February 1992 at which time he was claiming service connection for nausea and headaches, for back problems, for a disorder of the eyes, for posttraumatic stress disorder and for a scar on the chest. The Board notes that the claim for service connection for a scar on the chest is distinct and different from the subsequent claim for service connection for a rash which was first submitted in March 1997. The Board finds that, prior to March 1997, the record is devoid of any communication from the Veteran which indicates, in any way, that he was claiming entitlement to service connection for hearing loss, tinnitus and/or a skin disorder other than a scar. Based on the above, the Board finds the effective dates assigned by the RO at the time of the January 1997 rating decision are correct and that entitlement to earlier effective dates for the grant of service connection for tinnitus, hearing loss and tinea versicolor is not warranted. Entitlement to an earlier effective date for the grant of TDIU The issue of entitlement to an earlier effective date than May 1, 1998 for the grant of TDIU was before the Board in December 2006. At that time, it was determined that the effective date for the grant of TDIU should be April 15, 1997 through September 29, 1997 and from May 1, 1998 forward. The Board's December 2006 decision included notification of the Veteran's procedural and appellate rights with regard to the decision. The only recourse the Veteran has to contest the Board's December 2006 determination regarding the effective date for the grant of TDIU is: appeal to the United States Court of Appeals for Veterans Claims; request the Board to reconsider the December 2006 determination; request the Board to vacate the December 2006 determination; file with the Board a motion for revision of the December 2006 decision based on clear and unmistakable error. To date, the Veteran has not taken any of the above courses of action. Instead, he submitted a claim for an earlier effective date directly to the RO in January 2007. Based on this fact pattern, the Board finds that the December 2006 Board decision is final. A decision issued by the Board is final, unless appealed to the Court or another exception to finality applies (e.g., the Board orders reconsideration of the decision). 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). Under 38 U.S.C.A. § 7104(b), finality attaches once a claim is disallowed. 38 C.F.R. § 20.1100. There is no legal entitlement to an effective date earlier than April 15, 1997 for the assignment of TDIU. The Board finds that the January 2007 claim for an effective date earlier for the assignment of TDIU amounts to a free-standing effective date claim which violates the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Based on the procedural history of this case, the Board has no alternative but to dismiss the claim without prejudice to the Veteran filing a CUE claim. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Entitlement to an earlier effective date for the grant of eligibility to Dependent's Educational Assistance under 38 U.S.C. Chapter 35 For purposes of this claim, the grant of Chapter 35 benefits is dependent on the presence of a total disability, permanent in nature resulting from service-connected disability. 38 U.S.C. § 3501(a)(1). The Veteran has never been rated as 100 percent disabled at any time. The highest evaluation assigned for compensation purposes has been 80% disabling, effective from May 1, 1998. Additionally as set out above, the Board determines that a December 2006 decision by the Board which granted an earlier effective date for TDIU is final and that the Veteran is legally precluded from collaterally attacking the effective date assigned for the TDIU. This decision established that the effective date for TDIU is April 15, 1997 to September 30, 1997 and from May 1, 1998 to the present. April 15, 1997 is the first time the Veteran was determined to be totally disabled as a result of service-connected disabilities. The right to Chapter 35 benefits requires a total disability rating. The uncontested evidence of record demonstrates that the earliest that a total disability rating is warranted is April 15, 1997. This is the effective date assigned for the grant of Chapter 35 benefits. Entitlement to an earlier effective date of service connection for major depressive disorder In June 2006, the RO granted service connection for major depressive disorder with history of adjustment disorder and pain disorder and assigned a 50 percent evaluation effective from April 15, 1997 to September 30 1997 and from May 1, 1998 to the present. The Veteran was provided with notification of the grant of service connection for the psychiatric disorder and of his procedural and appellate rights via letter dated the same month. In January 2007, the Veteran submitted a claim of entitlement to an earlier effective date for all his service-connected which includes his mental disorder. The Veteran submitted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in February 1992. In October 1992, the RO denied the claim and the Veteran was informed of the denial via correspondence dated in the same month. After additional service treatment records were received, the claim was readjudicated in August 1993 at which time it was again denied. The Veteran was informed of the denial of service connection for PTSD in correspondence dated in August 1993. When additional records were received, the claim was again denied by the RO in May 1995 and the Veteran was informed of the decision the same month. The Veteran did not submit a notice of disagreement with any of the above rating actions and the Board finds they are final. 38 C.F.R. §§20.201, 20. 302(a). In January 1997, the RO denied service connection for nervousness claimed as due to an undiagnosed illness and the Veteran was informed of the decision the same month. In March 1997, the Veteran submitted a statement indicating that he wanted to be considered for service connection, in part, for a nervous condition. The March 1997 communication did not reference any prior rating decision denying service connection for a mental disorder and it did not indicate that the Veteran was expressing dissatisfaction or disagreement with an adjudicative determination by an agency of original jurisdiction. 38 C.F.R. § 20.201. The Board finds the March 1997 communication from the Veteran is not a notice of disagreement. No other communication which can be construed as a notice of disagreement was received from the Veteran within one year of notification of the January 1997 rating decision denying service connection for a nervous condition. The Board finds the January 1997 rating decision is final. 38 C.F.R. §§20.201, 20. 302(a). The Board finds that, while the March 1997 communication referenced above did not constitute a notice of disagreement, it does constitute a request to reopen the claim of entitlement to service connection for a nervous condition. At the time the Veteran submitted the March 1997 claim which has been construed as a request to reopen entitlement to service connection for a mental disorder, he was still on active duty service. The effective dates assigned by the RO for the grant of service connection for the disorders is April 15, 1997, the first day after the Veteran's discharge from active duty for his period of active duty service which was from February 3, 1992 to April 14, 1997. The regulations governing effective date claims specifically direct that the earliest that an effective date can be is the day following separation from active service if a claim was received within one year of the date of separation from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Board notes the Veteran has not contested the 50% disability rating assigned for his mental disorder. The effective date of this rating is the same as the effective date for the grant of service connection. To the extent that the Veteran has requested an effective date prior to April 15, 1997 for the grant of a 50 rating for his mental disorder, this also must be denied. The effective date for an increased rating cannot be prior to the date of the grant of service connection for the disability. Based on the above, the Board finds the effective date assigned by the RO at the time of the June 2006 rating decision is correct and that entitlement to earlier effective date for the grant of service connection for major depressive disorder is not warranted. Entitlement to an earlier effective date for the grant of an increased rating for recurrent lumbar radiculopathy status post hemilaminectomy and disckectomy In December 2002, the RO restored a 60 percent rating for the service-connected back disability from April 15, 1997 to September 29 1997 and from May 1, 1998 to the present. The Veteran was provided with notification of the grant of service connection for the back disorder and of his procedural and appellate rights via letter dated the same month. In January 2007, the Veteran submitted a claim of entitlement to an earlier effective date. The December 2002 letter to the Veteran explained to him that he had one year to appeal the December 2002 rating decision (meaning either the rating or the effective date assigned) or it would become final. Unfortunately, the Veteran failed to file such a decision and it did in fact become final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. Once a decision becomes final, the law provides that the decision will not be subject to revision on the same factual basis, except by duly constituted appellate authorities, for new and material evidence, or for clear and unmistakable error (CUE). 38 C.F.R. § 3.104(a), 3.105(a). Therefore, in order for the Veteran to obtain an earlier effective date for the back rating, he must show either that CUE was made in the rating decision that established the effective date, or show that evidence was constructively in VA's possession that was not considered. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rudd explained that if new and material evidence was presented in a claim that had been disallowed, VA would reopen the claim and review the former disposition. However, in this case, the rating decision in question dealt with the assignment of an increased rating, and therefore new and material evidence would not be relevant. Neither the Veteran nor his representative has alleged that a clear and unmistakable error (CUE) was made in the December 2002 rating decision that assigned the 60 percent rating for the Veteran's back disability from April 15, 1997 to September 29 1997 and from May 1, 1998 to the present. As such, the mere filing for an earlier effective date, without alleging that a CUE was made, is precluded by law. See Rudd. Nicholson, 20 Vet. App. 296 (2006). There is no legal entitlement to an effective date earlier than April 15, 1997 to September 29 1997 and from May 1, 1998 to the present, for the assignment of a 60 percent rating for the Veteran's back disability. The Board finds that the January 2007 claim for an effective date earlier for the assignment of a 60 percent rating for the Veteran's back disability amounts to a free-standing effective date claim which violates the rule of finality. See Rudd, 20 Vet. App. at 300. Based on the procedural history of this case, the Board has no alternative but to dismiss the claim without prejudice to the Veteran filing a CUE claim. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). ORDER Entitlement to an earlier effective date for the grant of service connection for tinea versicolor skin lesions is denied. Entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss is denied. Entitlement to an earlier effective date for the grant of service connection for tinnitus is denied. The claim of entitlement to an earlier effective date for the grant of TDIU is dismissed. Entitlement to an earlier effective date for the grant of eligibility to Dependent's Educational Assistance under 38 U.S.C. Chapter 35 is denied. Entitlement to an earlier effective date for the grant of an increased rating for major depressive disorder is denied. The claim of entitlement to an earlier effective date for the grant of an increased rating for recurrent lumbar radiculopathy status post hemilaminectomy and disckectomy is dismissed. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs